Opinion
CV-18-1129-PHX-DWL (JFM)
11-24-2021
Josef Timothy Dixon, Plaintiff v. Paul Penzone, et al., Defendants.
REPORT & RECOMMENDATION
James F. Metcalf United States Magistrate Judge
Under consideration is Plaintiff's Motion to Stay filed October 21, 2021 (Doc. 82). Plaintiff seeks an order staying this case pending resolution of his state criminal proceedings, the prosecution of which underlies Plaintiff's claims in this case.
The undersigned is hearing this matter on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b). The authority of a magistrate judge to resolve on referral a motion to stay depends upon whether the stay is effectively dispositive of a claim or defense. See Bastidas v. Chappell, 791 F.3d 1155, 1163 (9th Cir. 2015). Here, the recommending resolution is potentially dispositive of Defendants' defense under Heck v. Humphrey, 512 U.S. 477, 487 (1994), and or Plaintiff's claims which might be saved if a stay is granted and he is successful in the state court proceedings. Accordingly, the undersigned proceeds by way of report and recommendation.
This case was previously stayed pursuant to Younger v. Harris, 401 U.S. 37 (1971) pending completion of trial in the underlying criminal proceedings. (Order 8/21/18, Doc. 8.) The stay was lifted after conclusion of Plaintiff's criminal direct appeal. (See Order 4/26/21, Doc. 65.) Since then, discovery has closed and Defendants have filed a Motion for Summary Judgment (Doc. 78) relying in part on the contention that claims which necessarily imply the invalidity of his conviction must be raised in a habeas proceeding under Heck v. Humphrey, 512 U.S. 477, 487 (1994). Plaintiff's response to that motion was due on November 19, 2021. (See Order 10/13/21, Doc. 81.) None has been filed. Instead, Plaintiff filed the instant motion.
Plaintiff seeks a stay pending completion of his state court PCR proceeding and argues that he was unable to earlier request a stay of these proceedings on the basis of his currently pending post-conviction relief proceeding because (as a result of COVID-19 related issues) he did not possess the necessary documents.
On November 3, 2021, Defendants responded (Doc. 83) arguing that Plaintiff's appellate proceedings in the criminal case are fully concluded, that a response to the PCR petition was filed September 24, 2021 and the matter remains pending. Defendants argue relief is not likely to be granted, and that this Court should not delay these proceedings for what is likely to be only the first of such proceedings.
Plaintiff has not replied, and the time to do so expired November 15, 2021.
Plaintiff does not make explicit the basis on which he seeks a stay. The Court liberally construes the motion as seeking a stay under Younger, based upon: (1) the reference to delays in challenging the termination of the earlier stay; (2) the timing of the Motion to Stay; and (3) the nature of the arguments in the pending Motion for Summary Judgment.
“Younger abstention is a jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism.” San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). “We must abstain under Younger if four requirements are met: (1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves.” Id. at 1092.
In Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004), the Ninth Circuit recognized that although a suit seeking only damages (and not injunctive relief) with regard to an ongoing criminal proceeding would not directly interfere with such proceedings, “a determination that the federal plaintiff's constitutional rights have been violated would have the same practical effect as a declaration or injunction on pending state proceedings.” Id. at 968. The Ninth Circuit instructed, however, that “federal courts should not dismiss actions where damages are at issue; rather, damages actions should be stayed until the state proceedings are completed, ” unless exceptions to Younger apply. Id. at 968-969. Since Gilbertson, the Supreme Court has approved of the “common practice, to stay the civil action until the [pending] criminal case or the likelihood of a criminal case is ended.” Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (addressing the effects on the statute of limitations of dismissal).
Defendants propose no reason why Younger does not apply to Plaintiff's pending PCR proceeding. For example, they do not suggest that a grant of relief to Plaintiff in this proceeding would not impact the pending PCR proceedings. At best, they argue that this case is premature, because Plaintiff has not yet obtained relief from his conviction. But that is the purpose of a Gilbertson stay, to allow the civil complaint to remain pending until the conclusion of the related state court proceedings.
Defendants argue that there is a potential for prejudice if Plaintiff files a series of PCR proceedings challenging his conviction, with resulting repeated stays. But they cite no authority for the proposition that such potential avoids Younger. An exception to Younger's abstention doctrine exists where there is a “showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate.” Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 435 (1982). But Defendants offer nothing to show that Plaintiff is currently proceeding in bad faith, either in filing his state PCR petition or in seeking the instant stay, or that such potential is an extraordinary circumstance. That is not to suggest that the repetitive challenges envisioned by Defendants could not reach a point of showing such bad faith. But Defendants' bare prediction that it would occur does not justify assuming bad faith now.
Accordingly, the undersigned will recommend granting the stay, and directing periodic reports on the status of the state court proceeding.
Given the potential for extended delay in these proceedings, the undersigned will recommend the denial of Defendants' Motion for Summary Judgment (Doc. 78), without prejudice to it being refiled upon the termination of the stay.
IT IS THEREFORE RECOMMENDED:
(A) Plaintiffs Motion to Stay (Doc. 82) be GRANTED.
(B) This case again be STAYED pending resolution of Petitioner's pending state-court post-conviction relief proceeding, including any petitions for review therefrom.
(C) Within 90 days of an order this Report & Recommendation, and on the first business day of every third month thereafter, Defendants must file with the Court a "Notice of Status," advising the Court of the pendency of the state court proceedings.
(D) That the pending Motion for Summary Judgment (Doc. 78) be DENIED WITHOUT PREJUDICE to it being refiled upon termination of such stay.